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31 German Y.B. Int'l L. 9 (1988)
The Theory of International Customary Law

handle is hein.journals/gyil31 and id is 10 raw text is: ARTICLES The Theory of International Customary Law* By Gennady M. Danilenko I. Custom as a Source of International Law 1. The Concept of International Custom The formation of international law is the result of a complex political-legal process which is determined by a number of economic, political and ideological factors. The rules of international law do not directly emanate, however, from social relations. In international law, as in any other legal system, the creation of law, being a specific activity of States and other subjects of law, can take place only within the framework of certain legal procedures which serve as generally recogni- zed modes of manifestation of agreement of its subjects aiming at establishing legally binding rules of conduct. As normative products of law-creating processes recognised within the international community, the rules of international law exist in forms consistent with these processes. The internationally recognized processes of creating law along with the forms of its subsequent existence constitute the characteristic element of international law as an institutional entity. From the theoretical point of view, it may be asserted that without official recognition of certain law-creating procedures and relevant forms of expression, law in general and international law in particular cannot exist as a specific normative phenomenon. From the practical point of view, it is of decisive significance that the existence of law-creating procedures and relevant forms recognized by all States is an indispen- sable pre-requisite for determining what specific rules have to be considered as law and therefore implemented as such in international relations. Custom is one of these law-creating procedures. It also serves as one of the forms of existence of international legal norms. In other words, it is one of the sources of international law in a legal sense. The peculiarity of custom as a source of international law is that, in contrast to international treaty, it is difficult to differentiate here between the law-creating procedure and the normative result. Whereas the material source of a treaty * The author would like to acknowledge his appreciation to Professor William Butler of University College London, who made many helpful editorial suggestions on an English version of the article.